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2004 DIGILAW 942 (PAT)

Baidyanath Mahto v. State Of Bihar

2004-09-10

CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 27.4.1992 of the 1st Assistant Sessions Judge, Muzaffarpur, passed in Sessions Trial No. 35 of 1986 whereby the petitioner has been convicted under Secs. 25 (B) and 26 (A) of the Arms Act and has been respectively sentenced to undergo RI for three years and six years. The conviction under Sec. 26 (A) of the Arms Act is appears to be mistaken for conviction under Sec. 26 of the Arms Act. 2. The prosecution case, as disclosed in the fardbeyan of the informant Mahesh Paswan, chaukidar as recorded by ASI C.B. Sharan on 19.5.1985 at 16.10 hours at the house of the appellant Baidyanath Mahto is that on that day (19.5.1985) at about 12.00 noon he (informant) learnt that some arms and ammunitions were kept concealed in the house of the appellant. Learning this, the informant with Khobari Sahni (PW 1), Munarik Sahni, Babaji Sahni (PW 3) Turant Lal and Charitar Sahani (PW 6) went to the house of the appellant and recovered four country made pistols and four cartridges as well as five torch lights wrapped in a cotton bed-sheet was also recovered from the house. Besides this, one more country made pistol kept concealed in a gunny bag and two cartridges kept in a box were also recovered from the house. After the recovery, the officer in-charge of Mushahri Police out post was informed and then the ASI C.B. Sharan arrived there and he recorded the informants fardbayan. The seizure list (Exhibit-4) was also prepared by the ASI C.B. Sharan. The informant also stated in the fardbayan that he with the assistance of the villagers also captured the appellant. Baidyanath Mahto, who was handed over to the police. On the basis of fardbayan, formal FIR (Exhibit-6) was registered at Bochaha Police Station and after completion of investigation chargesheet was submitted and then on the trial the appellant was convicted. 3. As many as seven witnesses, were examined by the prosecution. PW 1 Tirath Narain Mallick has examined the recovered arms and ammunitions and had submitted his examination report (Exhibit-1) to the effect that out of the recovered arms four pistols were effective and three cartridges were live, fit to be used in shooting. PW 2 Mahesh Paswan is the informant. PW 3 Babajee Sahni is a seizure witness. PW 1 Tirath Narain Mallick has examined the recovered arms and ammunitions and had submitted his examination report (Exhibit-1) to the effect that out of the recovered arms four pistols were effective and three cartridges were live, fit to be used in shooting. PW 2 Mahesh Paswan is the informant. PW 3 Babajee Sahni is a seizure witness. PW 4 C.B. Sharan is the ASI who had recorded the fardbayan, PW 5 Khobhari Sahni is a seizure witness. PW 6 Charitar Sahni has been tendered by the prosecution and he does not say anything about the occurrence, PW 7 Kamla Prasad Singh has proved the sanction order accorded by the D.M. for prosecution of the appellant. 4. The informant (PW 2) deposed that the villagers informed him that Baidyanath Mahto had kept some arms and ammunitions concealed in his house and he along with Jamun Bhagat (not examined), Babajee Sahni (PW 3), Khobhari Sahni (PW 5), Munarik Sahni and Sant Lal Sahni (both not examined) went to the appellants house and recovered four revolvers, six torches and two cartridges from below the Chauki kept in the house and that one country made pistol kept in a gunny bag and one cartridge kept in a box was also recovered from the house. He also deposed that the appellant tried to escape but he was apprehended. He stated that his fardbayan was recorded. In the cross-examination, at para 6 he deposed that at the time of search the appellant was not present in the house. 5. PW-3 Babajee Sahni is said to be the witness on the point of seizure. He deposed that he along with the informant had gone to the appellants house and that three country made pistols, six torches and two cartridges wrapped in a bed sheet were recovered from the house and that one country made pistol as well as cartridge kept in a gunny bag and one cartridge kept in a box was also recovered. He also deposed in para 4 of his cross-examination that before conducting the search the chaukidar, who was wearing a "Muraitha" and carrying lathi had not given his own search. He further deposed that he did not try to inform the mukhiya or sarpanch of the village about the occurrence, 6. He also deposed in para 4 of his cross-examination that before conducting the search the chaukidar, who was wearing a "Muraitha" and carrying lathi had not given his own search. He further deposed that he did not try to inform the mukhiya or sarpanch of the village about the occurrence, 6. PW 4 C.B. Sharan, ASI deposed that while he was on patrolling duty he learnt that some illegal arms and ammunitions had been recovered from the appellants house and hence he went to the house of the appellant and he recorded the fardbayon of the informant. Fardbayan has been marked as Exhibit- 3. He further deposed that four pistols, four cartridges, six torch lights and one cotton bed sheet which had been recovered by the informant from the appellants house were seized by him and he also prepared the seizure list in presence of the witnesses Jamun and Sant Lal, who signed the seizure list. Seizure list is Exhibit-4. In para 4 of his crossexamination, he deposed that he had not investigated the case. 7. PW 5 Khobhari Sahni, who is said to be another witness on the point of seizure, deposed that Daroga Jee came and he showed him the arms and ammunitions recovered from the house of the appellant and then a seizure list was prepared. In para 3 of his cross-examination, he deposed that he had gone to the appellants house as Daroga Jee had called him and he further deposed that articles were not recovered from the appellants house in his presence. Thus, this witness deposed that no recovery was made in his presence from the appellants house. 8. PW 6 Charitar Sahni has been tendered by the prosecution and he says that he does not know anything about the occurrence. 9. PW 7 Kamla Prasad Singh is a formal witness who proved the sanction order of the D.M. according sanction for prosecution of the appellant. The sanction order has been marked as Exhibit-5. 10. During the course of hearing, learned counsel for the appellant pointed out several infirmities in the evidence and submitted that the prosecution has not been able to prove the case beyond the shadow of reasonable doubt. The sanction order has been marked as Exhibit-5. 10. During the course of hearing, learned counsel for the appellant pointed out several infirmities in the evidence and submitted that the prosecution has not been able to prove the case beyond the shadow of reasonable doubt. Firstly, it was argued that in the seizure list (Exhibit-4) Jamun, Bhagat and Sant Lal Sahni have been cited as witnesses to the seizure list but these two witnesses have not been examined by the prosecution. The learned APP is not able to explain any reason that why these two witnesses could not be examined. It was also argued by the appellants counsel that the I0 of the case has not been examined by the prosecution. The learned APP is again unable to explain why the 10 was not examined by the prosecution. 11. PW 4, ASI C.B. Sharan, who had recorded the fardbayon of the informant and also prepared the seizure list, deposed at para 4 of his cross-examination that no recovery was made in his presence. It appears from his deposition in this case that the informant with the help of some villagers had already made the recovery and after arrival of the police the recovered articles were produced before the PW 4, who prepared the seizure list. The appellants counsel argued that the informant (PW 2 at para 1) says that he along with Jamun Bhagat, Babajee Sahni, Khobhari Sahni, Munarik Sahni, Sant Lal and several others had gone to the house of the appellant but out of these persons only Babajee Sahni and Khobhari Sahni have been examined on the point of seizure and out of these two seizure list witnesses Khobhari Sahni (PW 5) says at para 3 of his evidence that nothing was recovered in his presence. Thus, it was argued by the learned counsel that only one witness, namely, Babajee Sahni has come to say about the, factum of recovery from the appellants house. It was also argued that the informant (PW 2 at para 6) stated that at the time of search the appellant was not present in the house. Hence, it was argued that the seizure has been in absence of the appellant and hence the recovery is not from the exclusive possession of the appellant. It was also argued that the informant (PW 2 at para 6) stated that at the time of search the appellant was not present in the house. Hence, it was argued that the seizure has been in absence of the appellant and hence the recovery is not from the exclusive possession of the appellant. Learned counsel also pointed to the evidence of the informant (PW 2 at para 3) that mukhiya and sarpanch of the villagers were not informed and it was argued that mukhiya and sarpanch could be easily available there and they were the responsible persons of the village but they were not informed before making recovery from the appellants house. In the light of these infirmities, it was argued that the evidence led by the prosecution is not up to the standard to establish the prosecution case beyond the shadow of doubt. 12. During the course of hearing, learned counsel for the appellant further argued that the petitioners conviction is under Sec. 26 of the Arms Act and he has been sentenced to RI for six years under this count. Learned counsel for the appellant submitted that the recovery is alleged from the village house of the appellant. Sec. 26 of the Arms Act was referred to by the learned counsel. Sec. 26 of the Arms Act says about the punishment for secret contraventions. Under Sub-sec. (1) and Sub-sec. (2) of Sec. 26 of the Arms Act conviction can be made when the accused is found to be contravening the provisions of Secs. 3, 4, 10 or 12 and Secs. 5, 6, 7 or 11 in such a manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance. Further, conviction under Section .3 of Sec. 26 can be made when the accused on a search being made under Sec. 22 conceals or attempts to conceal any arms or ammunition. In the light of these provisions under Section 26 of the Arms Act, learned counsel for the appellant argued that a conviction under Sec. 26 of the Arms Act can be made only when the accused has tried to conceal in contravention of Secs. In the light of these provisions under Section 26 of the Arms Act, learned counsel for the appellant argued that a conviction under Sec. 26 of the Arms Act can be made only when the accused has tried to conceal in contravention of Secs. 3, 4, 10, 12 or 5, 6, 7 and 11 of the Act from any person lawfully employed or working in a railway, aircraft, vessel, vehicle or any other means of conveyance. It was argued that in this case the recovery is allegedly from the village house of the petitioner and no public servant was on duty there. Considering the provisions under Sec. 26 of the Arms Act, I find that conviction under Sec. 26 of the Arms Act can be made only when arms is concealed from any public servant employed or working on a railway, aircraft, vessel, vehicle or any other means of conveyance. It does not include the recovery from any residential house situated in village. Therefore, the recovery as stated in this case does not warrant conviction under Sec. 26 of the Arms Act. 13. In such view of the matter, I find that the conviction of appellant under Sec. 26 of the Arms Act is not lawful even on the facts of the alleged recovery. 14. Learned counsel for the appellant also raised a technical point about the sanction. It was argued that the sanction (Exhibit-5) is not in any prescribed format. Perusal of the Exhibit-5 shows that giving details of the occurrence on the completion of investigation, the Io had written an application for obtaining sanction and the Superintendent of Po lice forwarded the application to the D.M. and the office of the D.M. wrote a single sentence "Abhiyojan Ki Swikirti Dee Jaati Hai" and thereafter an initial with the designation of the District Magistrate, Muzaffarpur is mentioned. Thus, the sanction shows that the District Magistrate accorded sanction with narration of a single sentence that sanction for prosiecution was being accorded. In this context, the case of Jaswant Singh V/s. The State of Punjab is relevant. Thus, the sanction shows that the District Magistrate accorded sanction with narration of a single sentence that sanction for prosiecution was being accorded. In this context, the case of Jaswant Singh V/s. The State of Punjab is relevant. The Hon ble Supreme Court has held that the object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it and come to a conclusion that the prosecution in the circumstances be sanctioned and it should be clear from the sanction that the sanctioning authority considered the evidence before it and after considering of all the facts and circumstances of the case sanctioned the prosecution. In the instant case, the sanction as accorded by the District Magistrate mentions only one sentence that sanction for prosecution was being accorded and it does not show that the sanctioning authority, before granting sanction, applied his mind and that he perused and considered the recovered arms and the evidence collected till the time of granting sanction. Since there is nothing to show that the District Magistrate had applied his mind to evidence of the case and he perused the recovered arms before according sanction, the sanction order can not be considered as a valid and perfect piece of order authorising sanction for prosecution due to the defects as mentioned above. In such view of the matter, the sanction order itself is bad and not acceptable in the eye of law. 15. In view of the facts and circumstances of the case, as discussed above, and the discussions made above, I find that the prosecution has failed to prove its case beyond the shadow of all doubt and, therefore, the appellant is acquitted of the charges. The conviction and sentence recorded by the learned trial Court is hereby set-aside. The appellant, who is on bail, is discharged from the liabilities of the bail bond. 16. In the result, the appeal is allowed.